Is a Criminal Background Keeping You Unemployed?
Part 2

Most of us learned early in life that living while Black comes with more than its fair share of challenges. The process of job hunting is hardly an exception, as racial discrimination remains a significant hurdle for many seeking employment. In Part 1, I detailed how criminal convictions could adversely affect employment prospects. Here, I’ve offered five tips for what to do if you believe you’ve been discriminated against—for a criminal background, or otherwise–while seeking employment.

1) Know Your Own Record: The first step to ensuring that a criminal history doesn’t hinder you when applying for work is to understand what your criminal history is, or whether you have one at all. All crimes are not created equal. A felony differs from a misdemeanor which differs from a violation and an arrest. They all may have involved uncomfortable experiences with law enforcement, but it is critical to truly understand what your actual record is. In some cases, if your conviction was a minor offense (public drunkenness from that time you mistook Times Square on New Years for Bourbon St. at Mardi Gras, for example), it may be a violation and not a crime. There is also the possibility that if you were a minor, you can seek to get certain crimes expunged from your record by contacting the court clerk of where your case happened. In any instance, you should make sure to have a certificate of disposition from all offenses which will state how your case was resolved. You can usually request one from the court clerk’s office for a nominal fee. Having accurate documentation can help you guard against background checks that come up with erroneous or incomplete information.

2) Disclose With Discretion: Purposefully withholding relevant information, or lying about information on a job application can have serious consequences including not getting the job or being fired after you start working. Still folks sometimes hurt themselves by offering more information to a potential employer than is needed. For example, there are some applications which ask only about prior felonies and some which ask about felonies in the past 10 years. If you provide information about a misdemeanor offense from your past, or an arrest that did not lead to a conviction, you may be unnecessarily divulging information which could be harmful to you. Before you disclose harmful information, be sure it is absolutely necessary and as accurate as possible. If you are not certain, ask questions! Be clear on whether the portions of your criminal background you are preparing to disclose are relevant when filling out applications. Additionally, it is perfectly ok to seek clarification as to how certain information requested during an application (ie credit checks, general background checks—both of which require your signed consent to conduct) will be used. If you are unclear about the relevance of a particular question on an application or search of your personal history, politely and professionally ask how the results of the search are handled, whether and with whom the results are shared, and how the results factor into the ultimate decision.

3) Follow Up and Seek Answers: In the event that you aren’t hired for a position, it doesn’t hurt to try and reach out to the person with whom you interviewed to find out why you weren’t selected. The best way to couch this discussion is to thank them for their time and then ask for feedback with respect to your application and interview. In getting feedback, try not to push back, but do your best to avoid leaving any other possibilities open that an employer can later state was an additional reason you weren’t hired. For example, you can always follow up their statement(s) with questions like “Is there anything else that you think may have hurt my chances?” Sometimes an employer may actually tell you exactly what it is. Avoid engaging in any back and forth but try and get as clear and concrete an explanation as you can. The caveat here is to keep expectations realistic. A drug conviction is likely going to keep you from working for a pharmacy. That’s not to say you will forever be unemployed, but it is important to approach these situations understanding that employers are likely to make decisions they feel are best for their businesses.

4) Document, Document, Document: As the old saying goes, “Get it in writing.” This actually goes for those seeking jobs as well as those who may be facing discrimination in workplaces where they are currently employed. The strongest evidence of anything is when it exists in black and white. Word of mouth immediately begs the question of credibility and bias. When things are documented, there leaves far less room for contradictions on what actually happened. During an application process, keep copies of your application itself, as well as any correspondence from your prospective employer. While the interpersonal touch of telephone calls can be preferred, it is always advisable to follow up conversations with emails and written correspondence that reiterate the important parts of any discussions. (IE: “Dear Mary, I enjoyed talking to you today about the position at X Corp. I appreciate your time and understand that you all are looking to make a decision within the next few weeks. I hope to be among the candidates selected for a second interview with the entire panel.”) This not only shows attention to detail, but subtly puts an employer on notice of what was stated in order to guard against any “bait and switch” attempts later on. These things matter because some employers’ accounts of conversations may drastically differ from your own. A common problem is when an employer verbally expresses to applicants that they have a policy of not hiring individuals with criminal backgrounds but when later investigated, the same employer not only denies making the statement but also says that no such policy exists. When it’s in writing, there is much less to debate.

5) Report It!: Because we know that racial discrimination came to a screeching halt in 2008 upon the election of our nation’s first Black president, it is extremely unlikely that you will ever encounter the effects of bias in the workplace (Insert blank stare, HERE). Sarcasm aside, institutional bias is often more systemic and harder to point out. However, the only way that we can even hope to address and combat this issue is through reporting it and not allowing it to go unchecked. If it looks, acts, quacks, and swims like a duck, well…While you may not have all of the information, if you are able to clearly articulate a concrete basis for feeling as though you were wrongfully discriminated against in applying for a job, or while employed on a job, you are encouraged to exercise your right to report it and have your claim investigated by the proper authorities. Sometimes there may be information which supports your claim that you won’t have access to which might surface. There are a host of agencies, both local and national, whose mission is devoted toward ensuring equality of employment opportunities. Most cities and states have a division of civil (and/or human) rights that will investigate your claim free of charge before you feel like you are forced to retain an attorney. There are also government agencies with local branches in different cities like the United States Equal Employment Opportunity Commission as well as organizations like the NAACP’s Legal Defense Fund who can look into unfair employment practices which may be connected to race.

Unfortunately, there is no magic formula to prevent discrimination on the job or in a hiring process. The most important thing to remember is that by not taking the power into your own hands, you relegate yourself to simply being a victim and the discrimination continuing with unknown amounts of others. Hopefully, these five steps will better position you or a loved one to know how to handle a situation where you feel like a potential employer is unfairly giving you a raw deal.

Charles F. Coleman Jr. is a former King's County (Brooklyn, NY) prosecutor and a federal trial attorney specializing in civil rights. Follow him on Twitter: @CFColemanJr

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